Terms and Conditions

By signing with Oak Digital, LLC, Client is acknowledging that Client’s Proposal and/or Agreement is subject to the following Terms and Conditions

I. COMPENSATION

Fees: Client agrees to pay Oak Digital, LLC, the fees listed in the Agreement, including all taxes.

Additional Costs: Pricing in the Agreement includes items listed in the Deliverables table. Any other costs, such as licensing of Third Party Materials, or any other expenses to third parties, will be billed to Client.

II. PAYMENT & PAYMENT SCHEDULE

Payment Schedule: Unless otherwise stated in Agreement, Client will pay 50% of Agreement cost at time of project start and 50% of Agreement cost at time of project conclusion. If Client does not fulfill payments within 90 days of date of invoice, Oak Maine reserves the right to send owed fees to a licensed and bonded debt collector.

Invoices: All invoices are payable within 15 days of receipt by Client.

If Client Is Late in Payment of Fees: Oak Digital, LLC, may charge a late fee of the greater of 1.5 percent per month of the overdue payment or the maximum allowed by law. When Oak Digital, LLC, elects to charge such a fee, this late fee shall be due and payable on all overdue balances.

Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.

Withholding Delivery: Oak Digital, LLC may immediately cease to provide Services to the detriment of Client, and may withhold delivery and transfer of ownership of any Deliverables, if payments are not current or overdue invoices are not paid in full.

Withholding License: All grants of any license to any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding additional costs, expenses, fees, or any other charges.

III. CHANGES TO PROJECT SCOPE

Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send Oak Digital, LLC, a written Change Order describing the requested changes in detail. Within five (5) days of receiving a Change Order, Oak Digital, LLC, will respond with a statement proposing Oak Digital, LLC’s availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions.

Major Change: If Client requests constitute any change to the amount of the time required to produce Final Deliverables, or the value of the Scope of Work, Oak Digital, LLC, shall be entitled to submit a new and separate Proposal to Client for written approval. Oak Digital, LLC, shall not begin work on the revised services until it receives a revised Proposal executed by both parties, subject to these Terms and Conditions.

Acceptance/Rejection: Client will have ten (10) days to respond in writing accepting or rejecting the new Proposal. If Client rejects the Proposal, Oak Digital, LLC, will not be obligated to perform any services beyond those in the original Proposal.

IV. DELAYS

Oak Digital, LLC, Delays: Oak Digital, LLC, shall use all reasonable efforts to meet the schedule of Final Deliverables as outlined in the Timeline and Payment Schedule in the Agreement. Oak Digital, LLC, may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions requested by Oak Digital, LLC, and/or Client shall not exceed five days.

Client Delays: Client shall use all reasonable efforts to provide needed information, materials, and approvals in a timely manner. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables. Client assumes all liability and responsibility for any Client delays.

Force Majeure: Any delay caused by conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension for any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, natural disasters, labor disputes, riots, acts of war, terrorism, and epidemics.

V. CANCELLATION AND REFUND POLICY

a) Full Deposit Refund
In order to qualify for a full refund of Client’s initial deposit, Client’s cancellation request must be received no later than ten (10) business days prior to the project start date, and no refund will be given if the project has already been rescheduled by Client one or more times.

b) Partial Deposit Refund
Client cancellation requests received between five (5) and fifteen (15) business days prior to the originally scheduled project start date will result in a refund of fifty percent (50%) of the deposit amount. Refunds will not be given where the project has already been rescheduled one or more times by Client.

c) No Refund Offered
In certain instances, no refund will be provided. The following outlines instances where Client is ineligible for a refund of monies paid toward services:
Automatic Cancellations for Contractual Violations – Projects automatically cancelled due to violations outlined in section d) or e) below are ineligible for a refund.
Cancellation Request Received Late – Client submits a cancellation request less than five (5) days prior to the originally scheduled project start date.

d) Non-Payment of Services
Client agrees to pay all invoices upon receipt of invoice date. Failure to do so will result in the following:

If final balance or installment is not paid within thirty (30) days of invoice date, Oak Digital, LLC, reserves the right to temporarily suspend Services on Client’s Deliverables until payment is submitted.

If non-payment of final balance or installment exceeds forty-five (45) days, the project is considered cancelled by Client and will be subject to a penalty to reactivate, as outlined below.

If a final balance is not paid within sixty days (60) days from the date of the final invoice, Client forfeits all future rights to and Deliverables created by Oak Digital, LLC, and Oak Digital, LLC, reserves the right to offer any non-proprietary or non-confidential work product for resale.

e) Automatic Cancellation
Oak Digital, LLC, reserves the right to immediately cancel the project for any of the following reasons:

Client fails to communicate or otherwise becomes unreachable (without prior notice) or unresponsive for more than five (5) consecutive business days during the project;
Project development is delayed or lapses more than five (5) business days due to Client’s failure to provide required project materials;

Client exceeds two (2) rescheduling requests or development is interrupted/paused by Client and Client fails to resume within six (6) months of original start date;
Any other material breach of the terms of this Service Agreement by Client.

f) Resuming Services after CancellationProjects automatically cancelled for causes set forth in sections d) or e) above are subject to a ten percent (10%) reactivation fee, calculated from the total project fee. All outstanding balances, including the reactivation fee, must be paid in full before any work resumes. Projects not resumed within six (6) months of cancellation are considered permanently cancelled and cannot be resumed.

VI. EVALUATION AND ACCEPTANCE

Acceptance Criteria: Upon the completion and deployment of Deliverables as outlined in the Proposal, the client will have ten (10) business days to report any defect to Oak Digital, LLC, for resolution. If the client has not identified any defect within the allotted time period, the Final Deliverable will be deemed acceptable.

Testing: Oak Digital, LLC, will test and correct Final Deliverables using commercially reasonable efforts before providing Deliverables to Client.

Approval Periods: Client shall, within five (5) business days after receiving each Deliverable, notify Oak Digital, LLC, in writing of: (a) any failure to comply with the specification of the Proposal or (b) any other objections, corrections, or changes required. Oak Digital, LLC, shall, within five (5) business days of receiving Client’s notification, correct and submit a revised Final Deliverable to Client. Client shall, within five (5) business days of receiving a revised Final Deliverable, either approve in writing or make further changes. If after three (3) corrections by Oak Digital, LLC, Client finds the Final Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be deemed approved and accepted. All objections, corrections, and changes shall be subject to the terms and conditions of this Agreement.

VII. DEVELOPMENT EXTENSIONS & RESCHEDULING

Scheduling is crucial to your project’s success and our ability to provide the agreed-to services in a timely and effective manner. What may be only a small delay on the Client’s end can have a significant impact on our delivery schedule, our staff’s availability, and our work on other clients’ projects. For those reasons, it is of utmost importance that we stick as closely to the schedule as possible, and we have incorporated the following provisions to encourage timely Client involvement and participation in the process.

While sticking to the schedule is the best way to ensure your project’s success, Oak Digital, LLC, understands that life isn’t always entirely predictable and there are times when things need to be delayed or rescheduled. Oak Digital, LLC, can accommodate certain rescheduling / delay requests, as follows:

Prior to Initial Deposit:If the initial deposit is not received before the project start date indicated in the Agreement, the project will automatically be considered rescheduled for a later start date at Oak Digital, LLC’s discretion. Client must submit rescheduling requests ten (10) business days before the project start date to not incur late fees (detailed in section II).

Prior to Project Start:
Oak Digital, LLC, will accommodate up to two (2) Client rescheduling requests prior to the project start date, provided the rescheduling request is made in writing at least ten (10) business days prior to project start date. Rescheduling requests received less than ten (10) business days prior to project start date are solely at the discretion of Oak Digital, LLC, and Oak Digital, LLC, cannot guarantee it will be able to honor those requests.

Project Underway for 0-3 Weeks:
For projects that are already underway and have been underway for less than three (3) weeks, Oak Digital, LLC, will accommodate a Client request to temporarily suspend work on the project for a period of time up to two (2) months from the original project start date. Projects that are paused / suspended for a period of more than two (2) months are subject to automatic cancellation by Oak Digital, LLC.

Project Underway for 3+ Weeks:
Once projects have reached the three (3) week point, they are considered fully underway and rescheduling or pausing the project can cause serious scheduling, staffing, and other issues. For these reasons we cannot guarantee that we can accommodate a pause / rescheduling request after this point, but we will do our best to work with you. Please note that clients requesting that the project be rescheduled / paused at this juncture may incur additional fees to offset our costs in reassigning staff and/or resources to accommodate your request.

Multiple Rescheduling Requests:
As indicated above, Oak Digital, LLC, has made provisions to accommodate up to two (2) separate rescheduling requests over the course of a project. Third and subsequent requests to delay or reschedule will be considered solely at the discretion of Oak Digital, LLC, and will incur rescheduling / restart fees as 50% of the total project fee.

VIII. CLIENT RESPONSIBILITIES

Client acknowledges that it is responsible for performing the following in a reasonable and timely manner:

(a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Oak Digital, LLC, unless otherwise specified in the Proposal;(b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable;(c) Make decisions regarding other parties.

IX. ACCREDITATION AND PROMOTION

Promotion: Oak Digital, LLC, retains the right to reproduce, publish, and display the Deliverables in Oak Digital, LLC’s portfolios and websites, in galleries, design periodicals, and other media or exhibits, for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.

Subject to the express written agreement of the parties to the contrary, this credit:

(a) shall be in the following form – “Website by Oak Digital, LLC”;(b) shall be included in the website footer only;(c) shall include a hyperlink to the website of Oak Digital, LLC, which opens in a new browser tab;(d) at a minimum size of 35 pixels by 35 pixels.

X. CONFIDENTIAL INFORMATION

Client’s “Confidential Information” includes information that Oak Digital, LLC, should reasonably believe to be confidential. Oak Digital, LLC’s “Confidential Information” includes the source code of any Oak Digital, LLC, Tools.

All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform the Deliverables detailed in the Agreement.

Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.

XI. RELATIONSHIP OF THE PARTIES

Independent Contractor: Oak Digital, LLC, is a Limited Liability Company. Oak Digital, LLC, shall determine, in its sole discretion, the manner and means by which the Deliverables are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by the Client signing the Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in the Terms and Conditions and Agreement.

Oak Digital, LLC, and the work, product, or Deliverables prepared by Oak Digital, LLC, shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by the Terms and Conditions and Agreement.

Agents: Oak Digital, LLC, shall be allowed to use third parties as independent contractors in connection with the Deliverables (“Agents”). Oak Digital, LLC, shall remain fully responsible for Agents’ compliance with the Terms and Conditions and Agreement.

No Exclusivity: The Terms and Conditions and Agreement do not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Oak Digital, LLC, and Oak Digital, LLC, shall be entitled to offer and provide services to others, solicit other clients, and otherwise advertise the services offered by Oak Digital, LLC.

XII. REPRESENTATIONS AND WARRANTIES

By Client: Client represents and warrants to Oak Digital, LLC that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Oak Digital, LLC, to use Third Party Materials.

(a) Oak Digital, LLC, will provide the Services and/or Deliverables identified in the Agreement in a professional and workmanlike manner;(b) Oak Digital, LLC, shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Oak Digital, LLC, Tools, sufficient for Oak Digital, LLC, to grant any intellectual property rights provided in the Agreement and Terms and Conditions;(c) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of the Agreement, all representations and warranties of Oak Digital, LLC, shall be void.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE AGREEMENT AND TERMS AND CONDITIONS, Oak Digital, LLC, MAKES NO WARRANTIES WHATSOEVER. Oak Digital, LLC, EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

XIII. INDEMNIFICATION AND LIABILITY

By Client: Client shall indemnify Oak Digital, LLC, from any and all damages, liabilities, costs, losses, expenses, or attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under the Agreement and Terms and Conditions. Oak Digital, LLC, shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.

By Oak Digital, LLC: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Oak Digital, LLC, may at its own expense replace any infringing content with non-infringing content.

Limitation of Liability: IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF Oak Digital, LLC, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES (“Oak Digital, LLC PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF Oak Digital, LLC. IN NO EVENT SHALL Oak Digital, LLC, BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY Oak Digital, LLC, EVEN IF Oak Digital, LLC, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

XIV. TERM AND TERMINATION

Term: The agreement shall begin when both parties sign and shall continue until all Services and Deliverables are complete and delivered, or until the Agreement is terminated.

Termination for Cause: Either party may terminate the agreement at any time, on thirty (30) days prior written notice if the other party breaches any of its responsibilities or obligations under the Terms and Conditions or Agreement and fails to cure that breach within five (5) days of written notice of the specifics of the breach by the non-breaching party.

Termination for Insolvency: Either party may terminate the agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.

Termination by Mutual Agreement: The agreement may be terminated by the mutual written agreement of the parties.

Termination for Convenience: Either party may terminate the agreement at any time and for any reason on thirty (30) days prior written notice to the other party. If Client terminates the Agreement under this section, Oak Digital, LLC, shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with these Terms and Conditions of the Agreement.

Termination Fees: In the event of termination, Client shall pay Oak Digital, LLC, for the Services performed and Deliverables created through the date of termination. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.

Intellectual Property: If Client terminates and on full payment of amounts due under the Agreement, Oak Digital, LLC, grants Client intellectual property rights as provided by the Terms and Conditions with respect to those Deliverables provided and accepted by Client as of the date of termination.

Confidential Information: On expiration or termination of the Agreement:

(a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and(b) all rights and obligations regarding Confidential Information shall survive.

XV. RIGHTS TO FINAL ART

Work for Hire: Final Deliverables developed by Oak Digital, LLC, under this Agreement are a work made for hire under the Copyright Act, and are thus the property of Client. Oak Digital, LLC, reserves all rights to those design and branding elements, iterations, drafts, ideas, or concepts that are not Final Deliverables.

License Grant to Oak Digital, LLC: Client thereby grants to Oak Digital, LLC, a non-exclusive, worldwide license in perpetuity to use, copy, display, publicly perform, and create derivative works of the Final Deliverables for the purposes of marketing Oak Digital, LLC’s services to others and to the public.

All Other Copyrights: Excepting those copyrights described in above, all other copyrights created under the Agreement, without an agreement in writing to the contrary, remain the property of the author, as that term is defined and interpreted under the Copyright Act.

XVII. DISPUTE RESOLUTION

Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.

Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.

Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the State of Maine. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.

Attorney Fees: The prevailing party shall be entitled to recover its attorney’s’ fees and costs in any dispute resolved by binding arbitration or litigation.

XVIII. GENERAL

Modification/Waiver: Modifications to the Agreement or these Terms and Conditions must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under the Agreement or these Terms and Conditions shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

Notices: All notices under the Agreement or these Terms and Conditions shall be given in writing either by:

(a) Fax or Email, with return confirmation of receipt;(b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt, of if no confirmation is received, five (5) calendar days after such notice is sent.

No Assignment: Rights or obligations under the Agreement or Terms and Conditions shall not be transferred, assigned or encumbered without the prior written consent of the other party.

Governing Law: The Agreement and Terms and Conditions shall be governed by the laws of Maine.

Severability: If any provision of the Agreement or Terms and Conditions is held invalid or unenforceable, the remainder of the Agreement or Terms and Conditions shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.
Headings and numbering used in the Agreement and Terms and Conditions are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the Agreement or Terms and Conditions, and shall not have any legal effect.

Complete Agreement: The Agreement and Terms and Condition are the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of the Agreement.

XIX. DEFINITIONS

Agreement means the Project Agreement which the Client signed prior to the project commencement and deposit.

Terms and Conditions refers to this document on the Oak Digital, LLC website found at http://oakdigital.io/terms.html

Oak Digital, LLC Tools means all design tools developed or used by Oak Digital, LLC in performing the Services or Deliverables, including pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

Client Content means all materials, writing, images or other creative content provided by Client used in Oak Digital, LLC’s preparation or creation of the Deliverables under this Agreement.

Consultation means time that Oak Digital, LLC spends meeting with Client, in person or over the phone, where she provides knowledge and expertise as a result of Client seeking advice, outside of the Scope of Work and Deliverables.

Deliverables means the work products specified in the Scope of Work to be delivered by Oak Digital, LLC to Client.

Final Deliverables means the final versions of Deliverables provided by Oak Digital, LLC and accepted by Client.

Project means the scope and purpose of the Client’s identified usage of the work product as described in the Scope of Work.

Services means all services and the Final Deliverables to be provided to (Client) by Oak Digital, LLC as described and otherwise further defined in the Agreement and Terms and Conditions.

Third Party Materials means any third-party materials incorporated into the Final Deliverables, without limitation.

Preliminary Works means all sketches, screen-shots and other material produced by Oak Digital, LLC in preparation for Final Deliverables.

Proposal means the scope and proposed usage of the work product as described in the Proposal document.

Scope of Work & Deliverables means the area in the Proposal where the work to be performed is described.